TOP TIP: Be Careful What You Put In Writing
A recent case provides a reminder to managers to be thoughtful about what they write in an email or text message. With the prevalence of email and text messages, many people tend to think of those means of communication as a casual equivalent to a conversation. This type of thinking, however, can come back to haunt the writer.
In Gaddis v. Brandywine Senior Care. Inc. d/b/a Brandywine Senior Living at Haverford Estates, a licensed practical nurse at an assisted living facility, who was experiencing health issues from diabetes, received several disciplinary warnings for errors in dispensing medications to residents. She then had a health incident at work, in which she was slurring and incomprehensible before losing consciousness while trying to buy candy from a vending machine; she was found with the coins in her mouth. She initially refused to go to the hospital, but ended up at the emergency room the following day. She was cleared to return to work but advised to follow up with other doctors.
The executive director of the facility emailed the nurse’s supervisor, the operations manager, and the chief nursing officer, expressing his belief that the nurse could not properly manage residents’ medication if her own health issues were not managed properly. The manager told the director and supervisor to inform the nurse that she had to receive clearance from multiple specialists related to her condition. The director then replied, by email, ‘[t]hat is what I was assuming, because we also have the age issue.”
Following yet another medication error, the nurse was fired. She then sued for disability and age discrimination. The court dismissed her disability discrimination claims because it was undisputed that she had committed multiple errors in administering medication to the residents, even after being fully cleared for work. Her age discrimination claim, however, was another matter. Although the employer argued that the comment about her age was only an acknowledgement that it should be cognizant of the Age Discrimination in Employment Act, the court found that it raised a fact issue as to whether the stated reason for termination was a pretext for age discrimination, as it was made by an actual decisionmaker who specifically referenced the nurse’s age shortly before she was terminated.
The lesson from this case is that “casual” means of written communication, such as emails and texts, do not go away, are still discoverable in litigation and can be interpreted in several ways, including as an expression of bias – even if it was not intended that way. So, as a general matter, managers should be extremely careful about referencing employees’ protected characteristics in writing.